# Herman v. AAR Aviation Corp

> District Court, M.D. Florida · March 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10109586

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10109586

## How later opinions describe it (automated extraction)

- noting that an employer may terminate an employee for company policy violations

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ROBERT HERMAN,

Plaintiff,
Case No. 3:20-cv-326-MMH-LLL
vs.

AAR GOVERNMENT SERVICES,
INC., a Foreign Profit Corporation,

Defendant.
/

O R D E R

THIS CAUSE is before the Court on Defendant’s Dispositive Motion for
Summary Judgment and Incorporated Memorandum of Law (Doc. 44; Motion),
filed on June 18, 2021. In the Motion, Defendant AAR Government Services,
Inc. (AAR) requests that the Court enter summary judgment in its favor
pursuant to Rule 56, Federal Rules of Civil Procedure (Rule(s)). See Motion at
1. Plaintiff Robert Herman filed a response in opposition to the Motion on July
2, 2021. See Plaintiff’s Amended Response and Opposition to Defendant’s
Motion for Summary Judgment and Incorporated Memorandum of Law (Doc.
45; Response). On July 16, 2021, Defendant filed a reply. See Defendant’s Reply
in Further Support of its Motion for Summary Judgment (Doc. 46; Reply).1
Accordingly, this matter is ripe for the Court’s consideration.

I. Background2
This case arises out of Herman’s termination from AAR on January 16,
2019. See generally Second Amended Complaint and Demand for Jury Trial
(Doc. 6; Second Amended Complaint).3 Herman first began working for AAR as

an order picker around May of 2013, when he was 52 years old. See Motion at
1; see Robert Herman Deposition (Doc. 44-4; Herman Depo) at 17, 27. In August
of 2016, an ongoing conflict between Herman and his coworker, Robert Burrus,

1 AAR first filed a summary judgment motion on April 16, 2021, see Defendant’s
Summary Judgment Motion with Incorporated Memorandum of Law (Doc. 37), and Herman
responded on May 21, 2021. See Plaintiff’s Response and Opposition to Defendant’s Motion
for Summary Judgment, Statement of Undisputed Material Facts and Incorporated
Memorandum of Law (Doc. 41). On June 4, 2021, the Court entered an Order notifying the
parties that their filings were inconsistent with this Court’s Local Rules and directed them to
correct the filings. See Doc. 42. As such, the Motion and Response as well as the Reply filed
after the Court’s Order (Doc. 42) and in compliance with the Local Rules are the relevant
filings.
2 For the purposes of resolving AAR’s Motion, the Court views all disputed facts and
reasonable inferences in the light most favorable to Herman. However, the Court notes that
these facts may differ from those ultimately proved at trial. See Lee v. Ferraro, 284 F.3d 1188,
1190 (11th Cir. 2002).
3 Herman filed his original complaint on March 30, 2020. See Complaint and Demand
for Jury Trial (Doc. 1; Original Complaint). In an Order entered on April 1, 2020, the Court
explained that the Original Complaint constituted an impermissible shotgun pleading and
directed Herman “to file an amended complaint that sets forth each of his claims for relief in
a separate count.” See Order (Doc. 5) at 2. Herman filed an amended complaint on May 1,
2020. See Amended Complaint and Demand for Jury Trial (Doc. 6; Amended Complaint). On
July 15, 2020, Herman filed an Unopposed Motion for Leave to Amend Complaint to Substitute
Proper Party Defendant and Amend Style (Doc. 21) and attached a proposed second amended
complaint. The Court granted the unopposed motion on July 17, 2020, and directed the Clerk
to file the proposed complaint on the docket as of July 15, 2020. See Order (Doc. 24).
Accordingly, the Second Amended Complaint and Demand for Jury Trial (Doc. 26) is the
operative pleading in this action.
culminated in both employees being sent home to prevent a physical altercation
between them. See Herman Depo at 31-33, 73-74; see Michael Lile Deposition

(Doc. 44-8; Lile Depo) at 18. In a written warning to Herman documenting this
event, which Herman refused to sign, Herman’s manager Dudley Reynolds and
AAR Human Resources Representative Lizzy Vasquez, recorded that Herman
“was verbally coached” a few months prior regarding a similar incident with

Burrus. Exhibit 5: Written Warning (Doc. 44-5). Burrus ultimately left AAR in
February of 2017. See Herman Depo at 18. Around this same time, Herman
began having problems with another coworker, Christopher Pate. See Herman
Depo at 45-48.

While Herman’s interactions with Burrus included negative comments
directed at Herman about his wife and kids, Pate “made a lot of comments to
[Herman] about [his] health and about [his] age.” Id. at 49-50, 40-41.
Specifically, Pate referenced Herman’s age by calling him names like “old fart

and old goat” and stating that Herman would not work at AAR much longer. Id.
at 46-47. Herman complained twice to his supervisor, Mike Lile, about Pate’s
name-calling “but stopped complaining because nothing was getting done.” Id.
at 74. On or about July 2, 2018, Herman applied and was selected for an open

position in the Raytheon department, which was at the far end of the warehouse,
away from where he worked with Pate. See id. at 77-78; see Exhibit 1:
Declaration of Esmeralda Garcia (Doc. 44-1; Garcia Decl.), Exhibit C; see
Herman Decl. at 3. Herman and Lile were both hopeful that the move would
deescalate the conflict between Herman and Pate because they would no longer

work in close proximity. Herman Depo at 77-78; Lile Depo at 63. Nonetheless,
Herman still walked past Pate’s work area for breaks or at lunchtime where
negative comments and gestures persisted from both employees. Herman Depo
at 43, 87-88. However, Herman did not “levy any additional complaints” about

Pate. Herman Decl. at 7.
In addition to the comments by Pate and Burrus, Herman maintains that
his manager Dudley Reynolds made age-related comments while Herman was
employed at AAR. Herman asserts that around 2016 or 2017, Reynolds made a

comment about there “being too many old chiefs” and needing more “young
bucks around” at AAR. Id. at 50-52. Reynolds also commented that a particular
employee “only [had] two speeds, slow and slower, and if it wasn’t for his
military background, his old ass would be out of here, too.” Id. In 2014 or 2015,

on one specific occasion, Herman overheard George Mayo, a 59-year-old AAR
employee, threaten to shoot the regional manager. Id. at 39. In reference to
this incident Reynolds laughed and said “[y]eah, when you get to that age, your
mind snaps.” Id. at 59. Representatives from the human resources department

in Illinois came to Jacksonville to interview employees who witnessed Mayo’s
comment including Herman. Id. at 65. During his interview, in addition to
verifying Mayo’s threat, Herman mentioned Reynolds’ comment and told human
resources that he felt Reynolds could have handled the situation more
professionally. Id. at 66. Herman did not, however, complain to human

resources or anyone else at AAR about any of Reynolds’ other age-related
comments. Id. at 67.
On January 11, 2019, Lile emailed human resources in response to a
complaint from Pate that Herman had been using profanity, making vulgar

comments towards him, and went out of his way to stare at Pate, make
comments, or “give him the finger.” See Garcia Decl. at 2; Garcia Depo at 18-
19. In his email, Lile explained that since Burrus had left AAR, “Herman just
had to find someone else to harass . . . [t]he new target is Chris Pate, my number

1 warehouse clerk.” Garcia Decl., Exhibit C. Despite transferring Herman to
the Raytheon department, Lile wrote that Herman took a route to the restroom
and breakroom that takes him by Pate to make “rude and inappropriate
comments.” Id. Lile expressed,

this isn’t like a performance issue where I will give a person
multiple chances to fix the problem; put them on a performance
improvement plan and provide additional training. This is basic
professionalism, integrity and character issue. The stuff every
employee must bring to the game on the first day. We have good
anti-harassment policies; # Be Inclusive, Work as One, etc. I
request that we do not turn this into a multi-phase, second, third
and final warning scenario. He has been counseled once already.
He has history. I am sure he is going to deny it this time too, but
this time I have witness [sic], who will back Chris up.

Id.
Upon receipt of Lile’s complaint, Esmerelda Garcia from the human
resources department undertook an investigation. Garcia Decl. at 2. As part of

the investigation, Lile called Herman to his office where Garcia interviewed him
by phone. See id. at 3; Herman Depo at 79. Garcia questioned Herman about
his interactions with Pate and let Herman know that she was investigating the
situation. Herman Depo at 79-80, 83, 92. Herman advised Garcia that he and

Pate did not have a relationship but acknowledged there had been some back
and forth between them. Garcia Depo at 20. Additionally, in his deposition
during the discovery phase in this case, Herman testified that during his
interview in discussing his interactions with Pate, he told Garcia:

Oh, I guess if he called me a queer or a fag or faggot or – I would
just say, yeah, right back at you, Pal. F*** you. I’d say f*** you
back. Or suck my dick. I would say suck my dick. It was just s**t
where I was fed up dealing with a young guy like this, start – trying
to start crap with me. But yeah, I would say stuff right back at him,
towards the end.

Herman Depo at 87. According to Herman, Pate instigated the confrontations.
Garcia Depo at 20.
Garcia interviewed Pate, Lorinda Nelson, Ida Johnson, and Dudley
Reynolds as part of her investigation. See Garcia Decl. at 2, Ex. D. Pate told
Garcia that Herman came by his workstation to stare at him and called him
things like “Asshole,” “F**king idiot,” and “Fag.” Id. He also told her that
Herman threatened to beat Pate’s ass. Id. Pate expressed to Garcia that
although Herman switched departments, he would still go out of his way to
confront Pate. Id. Pate explained that his reaction generally was to laugh it off

and not respond and noted that when Burrus had issues with Herman, “the
more that Burrus complained, the worse it got for him.” Id. Pate testified that
Herman’s conduct got “worse and worse.” Deposition of Christopher Pate (Doc.
44-9; Pate Depo) at 12. The breaking point that caused Pate to complain was

when Herman told Pate that the reason Pate had needed surgery was that
“[Pate] was getting f**ked in the ass by guys.” Id. at 40.4 Additionally, Pate
identified several employees, most of whom Garcia interviewed, as individuals
who had witnessed Herman’s behavior. Garcia Decl., Ex. D.

In her interviews, Garcia found that these individuals largely
corroborated Pate’s complaints about Herman. Garcia Depo at 21. Specifically,
Ida Johnson told Garcia that she knew of issues between Herman and Pate and
that other AAR employees suffered similar treatment by Herman. Id. In her

notes from the interview with Johnson, Garcia documented that Johnson
reported that Herman spread a rumor that she was having an affair with
Reynolds, that Herman could be described as a “pot-stirrer, instigator, arrogant,
cocky, very rude, menace, jerk” and that “everyone has witnessed [Herman]

being a jerk at some point in time.” Garcia Decl., Ex. D.

4 Garcia’s notes reflect that Pate reported this statement to her in his interview. Garcia
Decl., Ex. D. Herman denies ever making such a statement, but does not dispute that Pate
reported to Lile and Garcia that Herman did so.
Garcia’s notes from her interview with Lorinda Nelson reflect that Nelson
stated that Pate came to her about the issues Pate was having with Herman.

Id. She advised that these types of issues with Herman had been going on for
years, and that Herman was a bully and made comments about Nelson doing
SlimFast. Id. According to Nelson, when Johnson called Herman out for failing
to follow protocol, Herman “[w]rote Ida’s name under a skull picture; [c]rossed

her name out on the potluck listing; [and] [took] things off her cart.” Id. With
respect to Jim Lynch, Garcia’s notes reflect that Lynch said he had not seen any
inappropriate behavior lately but noticed Pate was upset and spoke with him
about what was going on. Id. Previously, Herman had “gotten in Jim’s face

because he put trash in a bin that Robert Herman had just emptied,” but it only
happened the one time because Lynch lashed back at him. Id. Lynch expressed
in his interview that he avoids Herman and believes other employees do the
same. Id. Lynch also expressed the view that Herman “takes pleasure in

causing problems/chaos,” that there have been continuing problems with
Herman, and that “[h]e clashes with people and likes to stir the pot.” Id. In his
interview with Garcia, Dudley Reynolds explained that he had not heard of
recent issues with Herman but knew there were problems in the past. Id. He

was also aware of the issues with Herman and Johnson, although they were
handled by a different supervisor. Id. Ultimately, Reynolds stated that he felt
that “there would not be a big impact to the team if they lost Robert Herman as
an employee.” Garcia Decl., Ex. D; see Garcia Depo at 21-22.

Based upon her investigation, Garcia concluded that Herman engaged in
inappropriate behavior and language in the workplace in violation of AAR policy
and had a habit of picking on his co-workers at the Jacksonville warehouse.
Garcia Depo at 23. In light of these findings, Garcia recommended to her

supervisor, Human Resources Director Jeffrey Kroesch, that AAR terminate
Herman. Garcia Decl. at 3. Garcia then presented her recommendation to the
rest of her team, Vice President of Human Resources, Nicole Colen, Vice
President and General Manager of Government Programs, Jay Pereira, and

Senior Vice President of Integrated Solutions, Nicholas Gross. Id. at 3-4. The
team unanimously agreed with Garcia’s recommendation and approved
Herman’s termination. Id. at 4. On January 16, 2019, Lile informed Herman
that he was being terminated. Herman Depo at 93. AAR replaced Herman

with an employee that was approximately 30 years old. See id. at 120; see
Garcia Depo at 39.
Herman subsequently filed a charge of discrimination with the United
States Equal Employment Opportunity Commission (EEOC) against AAR. See

Second Amended Complaint at 2. On January 29, 2020, the EEOC provided
Herman a Right to Sue Letter informing him that its investigation established
reasonable cause that some or all of the violations alleged in the charge
occurred. Id. Thereafter, Herman initiated the present action on March 30,
2020, by filing his four-count complaint alleging claims of discrimination and

retaliation under the Age Discrimination and Employment Act of 1967, 29
U.S.C. § 621 et seq. (ADEA) and the Florida Civil Rights Act, Fla. Stat. § 760.10
(FCRA). See generally Original Complaint.
II. Standard of Review

Under Rule 56, “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Rule 56(a). The record to be
considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Rule 56(c)(1)(A).5 An issue is

5 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding
summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The
language of subdivision (a) continues to require that there be no genuine
dispute as to any material fact and that the movant be entitled to judgment as
a matter of law. The amendments will not affect continuing development of
the decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they
are highly persuasive.” Campbell v. Shinseki, 546 F App’x 874, 879 n.3 (11th Cir. 2013). Thus,
case law construing the former Rule 56 standard of review remains viable and is applicable
here.
In citing to Campbell, the Court notes that “[a]lthough an unpublished opinion is not
binding . . . , it is persuasive authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th
Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished
genuine when the evidence is such that a reasonable jury could return a verdict
in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-
moving party’s position is insufficient to defeat a motion for summary
judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)).
The party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged
its burden, the non-moving party must then go beyond the pleadings, and by its
own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)
(internal citations and quotation marks omitted). Substantive law determines
the materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

opinions are not considered binding precedent, but they may be cited as persuasive
authority.”).
summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of
Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual
dispute is material to an issue affecting the outcome of the case.”). In
determining whether summary judgment is appropriate, a court “must view all
evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,
1578 (11th Cir. 1994)).
III. Discussion

As a preliminary matter, the Court notes that age-related discrimination
and retaliation claims under the FCRA are analyzed under the same framework
as the ADEA. Mazzeo v. Color Resols. Int'l, LLC, 746 F.3d 1264, 1266 (11th Cir.
2014) (citations omitted); see also Cardelle v. Miami Beach Fraternal Ord. of

Police, 593 F. App'x 898, 903 (11th Cir. 2014). Thus, the law applicable to and
the Court’s discussion of Herman’s ADEA discrimination and retaliation claims
also apply to his claims under the FCRA.
a. Discrimination

The ADEA and FCRA make it unlawful for an employer to discriminate
against an employee because of such employee’s age. See 29 U.S.C. § 623(a)(1);
Fla. Stat. § 760.10. “A plaintiff may establish a claim of illegal age
discrimination through either direct evidence or circumstantial evidence.” Van
Voorhis v. Hillsborough Cty. Bd. of Cty. Comm'rs, 512 F.3d 1296, 1300 (11th

Cir. 2008) (citation omitted). The Eleventh Circuit has explained that “direct
evidence is evidence that ‘if believed, proves the existence of a fact without
inference or presumption.’” Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203,
1215 (11th Cir. 2021) (quoting Fernandez v. Trees, Inc., 961 F.3d 1148, 1156

(11th Cir. 2020)).
In other words, the evidence must indicate that the complained-of
employment decision was motivated by the decision-maker’s
ageism. As a result, only the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of age will
constitute direct evidence of discrimination.

Damon v. Fleming Supermarkets Of Fla., Inc., 196 F.3d 1354, 1358-59 (11th Cir.
1999) (emphasis in original) (citation and quotation omitted). For this reason,
evidence that “merely ‘suggests, but does not prove, a discriminatory motive’ is
not direct evidence.” Todd, 998 F.3d at 1215 (quoting Fernandez, 961 F.3d at
1156).
ADEA claims premised on circumstantial evidence rather than direct
evidence are evaluated under the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To make a prima facie case of age discrimination, the employee
must show: (1) he was a member of the protected group between
the age of forty and seventy; (2) he was subject to an adverse
employment action; (3) a substantially younger person filled the
position from which he was discharged; and (4) he was qualified to
do the job from which he was discharged.

Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015) (citing
Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)). If
the plaintiff presents a prima facie case, “the burden of production is shifted to
the employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action.” Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir.
2013) (emphasis in original) (citing Tex. Dep't of Comm. Affairs v. Burdine, 450
U.S. 248, 254–55, 101 S.Ct. 1089, 1094–95, 67 L.Ed.2d 207 (1981)). If the

defendant meets this burden of production, “the employee is afforded an
opportunity to show that the employer’s stated reason is a pretext for
discrimination.” Id. (citations omitted). “Importantly, throughout this entire
process, the ultimate burden of persuasion remains on the employee.” Id.

(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506–07 (1993)).
In the Motion, AAR argues that the Court should enter summary
judgment in its favor with regard to Herman’s discrimination claims under the
ADEA and the FCRA because Herman has not presented direct or

circumstantial evidence of age discrimination. See generally Motion. First,
AAR asserts that Herman has not identified any direct evidence of age
discrimination. See id. at 12-13. Second, AAR contends that Herman cannot
present circumstantial evidence of age discrimination under the McDonnell
Douglas framework. See id. at 13-20. With respect to this second argument,
AAR maintains that Herman was not qualified for his job because he violated

the company’s anti-harassment policies and as such, cannot make a prima facie
showing of age discrimination. See id. at 14. Even if Herman could make a
prima facie showing, AAR insists that it had a legitimate reason for terminating
Herman based on these same violations. Id. at 15. Finally, AAR argues that

Herman cannot demonstrate that its reason for firing him was merely pretext
because: (1) AAR’s investigation revealed sufficient evidence of inappropriate
conduct by Herman to support a good faith belief he engaged in such conduct,
(2) the “stray” age-related comments alleged by Herman did not come from any

decisionmakers, (3) the individuals over the age of 40 who have also been
terminated were identified by Herman without any showing that such
terminations were based on their age, and (4) AAR hired and fired Herman
while he was within the protected age group which creates an inference of

nondiscrimination. Id. at 16-20.
In Response to AAR’s argument regarding direct evidence, Herman points
to age-related, derogatory comments by his two coworkers, Pate and Burrus.
Response at 11-13. Herman also contends that Lile ignored his two complaints

about Pate’s name-calling which, in his view, constitutes direct evidence of age
discrimination. See id. at 12-13. Herman further argues that “it is illogical to
believe that Garcia ‘did not’ know that Plaintiff was, at the very least, over the
age of forty (40) at the time she recommended his termination,” Id. at 14, and
that “[t]his, unequivocally, establishes a causal connection between Plaintiff’s

complaints of age discrimination and subsequent investigation by Garcia, and
Plaintiff’s unlawful termination – without providing him a reason for doing so.”
Id. With regard to whether he presented circumstantial evidence of age
discrimination, Herman argues that he

was unquestionably qualified to do the job from which he was fired
– performing all essential job functions without substantial issue
and performance of his essential job functions was not identified by
Defendant to Plaintiff as a source of Plaintiff’s termination, but
instead, articulated not a single reason for Plaintiff’s termination to
him.

Id. at 15. Herman maintains that AAR has not proffered a legitimate reason for
firing him because “[t]he sole reason behind Plaintiff’s termination was
discriminatory animus based on his age.” Id. at 16. Without addressing AAR’s
specific arguments, Herman contends that the reason proffered was merely
pretext because of Burrus and Pate’s comments related to his age. Id. at 17-18.
Herman asserts
[a]ge was the only reason for Defendant’s adverse employment
action taken against Plaintiff, Defendant’s actions were pretextual,
without a legitimate, non-discriminatory reason for doing so, and
Plaintiff has demonstrated the requisite “but for” causation to
establish a claim for intentional age discrimination via direct and
circumstantial evidence.

Id. at 18 (citations omitted). In its reply, AAR generally reiterates the same
arguments presented in the Motion. See generally Reply.
Despite his argument to the contrary, Herman has not identified any
statement that constitutes direct evidence of age discrimination. He points to

no evidence that anyone at AAR who was involved in the decision to terminate
him demonstrated blatant discriminatory animus towards him such that it
could amount to evidence of age discrimination. His assertion that Garcia must
have known his age,6 is simply unavailing. Knowledge of a person’s age is not

direct evidence of age discrimination. Indeed, even assuming Garcia knew
Herman’s age in January of 2019, he points to no comment or statement
reflecting any discriminatory animus on her part. Instead, Herman simply
argues that his age was the reason she terminated him, that Garcia’s

investigation was “haphazard,” and that her recommendation was
“retaliatory.”7 Id. However, none of this constitutes direct evidence of age

6 In his declaration Herman states,

I have no knowledge of whether Garcia had knowledge of my age “[a]t no time
during the interview,” but that is inconceivable given her review my personnel
file (age discrimination complaints therein), witness interviews and overall
investigation into Pate’s manufactured complaint.

Herman Decl. at 6.
7 Herman’s citations to the record in support of his arguments are largely unhelpful. For
example, in support of his claim that Garcia ignored his complaints of age discrimination and
that Garcia conducted a haphazard investigation, Herman cites to “ECF 37-1 at Ex.1-4.”
Document number 37-1 is AAR’s Statement of Material facts in the original motion for
summary judgment that the Court struck as being inconsistent with its Local Rules and which
does not contain any exhibits. See Defendant’s Rule 56.1 Statement of Material Facts in
Support of its Motion for Summary Judgment (Doc. 37-1). In the same paragraph of the
Response, Herman cites to “ECF No. 49:24-50:19.” See Response at 13. Document number 49
is Plaintiff’s Motion to Withdraw Alexander Harne, Esq. As Counsel of Record (Doc. 49) and
the Court is unable to discern its possible relevance to Herman’s arguments regarding Pate
and Burrus’ purported discriminatory comments.
discrimination. See Damon, 196 F.3d at 1359 (“An example of direct evidence
would be a management memorandum saying, ‘Fire Earley – he is too old.’”).

Nor does Lile’s failure to address Herman’s complaints about name-calling
constitute evidence that he bore any discriminatory animus toward Herman due
to his age.8 Moreover, to the extent Herman contends that Pate, Burrus, or
Reynolds’ statements qualify as direct evidence of discrimination, none of these

individuals took part in the decision to terminate him. Lile Depo at 27; Reynolds
Depo at 11. As such, their conduct cannot constitute direct evidence that
Herman’s termination was based on his age. Morgan v. Kalka & Baer LLC, 750
F. App'x 784, 787 (11th Cir. 2018) (“remarks by non-decisionmakers or remarks

unrelated to the decisionmaking process itself are not direct evidence of
discrimination.”) (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998) abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006)). Additionally even viewed in the light most

favorable to Herman, all of these comments, even in combination with Herman’s
eventual termination, at most, “suggest[] discrimination, leaving the trier of fact
to infer discrimination based on the evidence; by definition then, the evidence is
circumstantial.” Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th

Cir. 1990) (citing Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.

8 Notably, in his deposition Herman testified that he believed Lile wanted to keep him
as an employee but Lile’s hands were tied by the decision of “HR.” Herman Depo at 94-95.
1987)). Such evidence fails to rise to the level of direct evidence of age
discrimination. Damon, 196 F.3d at 1358-59 (“only the most blatant remarks,

whose intent could be nothing other than to discriminate on the basis of age will
constitute direct evidence of age discrimination.”).
In the absence of direct evidence, the Court turns its consideration to
whether Herman can prevail on his age discrimination claims on the basis of

circumstantial evidence. The parties do not dispute that Herman can satisfy
three of the four elements required to make a prima facie showing of age
discrimination under the McDonnell Douglas framework. Herman, at fifty-
eight years old, was a member of the protected group, he was subject to an

adverse employment action when AAR terminated him, and he was replaced by
an individual substantially younger than he was at the time. See Herman Decl.
at 2; see Herman Depo at 120; see Garcia Depo at 39. Nevertheless, AAR
contends that Herman has failed to make his prima facie showing because

Herman cannot satisfy the final element: that he was qualified for the job from
which he was discharged. Motion at 14. In making this argument, AAR relies
on Herman’s purported violations of company policy, which is also the reason
proffered for his termination. Id. This contention is without merit. The

Eleventh Circuit has instructed that district courts should not consider an
employer’s justifications for terminating an employee in determining whether
the employee was qualified for the job. See Liebman, 808 F.3d at 1299-1300
(“When it found that [the plaintiff] was not qualified for his position based on
[his employer’s] proffered reasons for firing him, the district court conflated the

burden shifting stages of the McDonnell Douglas framework.”). To determine
whether the plaintiff was qualified for the position from which he was fired,
courts should instead focus on the plaintiff’s skills and background. See Clark,
990 F.2d at 1227 (citations omitted). And, a plaintiff, such as Herman, can

create an inference that he was qualified for a particular position if he had held
the position for a significant amount of time. Damon, 196 F.3d at 1360 (citations
omitted).
The record before the Court reflects that Herman worked at AAR for

almost six years prior to being terminated. See Herman Depo at 28-29. His
supervisor Reynolds did not recall Herman receiving less than meets
expectations on his performance evaluations. Reynolds Depo at 18. Lile
testified that Herman was a good worker in that “he was dependable, he was at

work every day, did his job.” Lile Depo at 24. However, the record also contains
evidence casting doubt on Herman’s qualification for the position he held at the
time of his termination. In Lile’s email to human resources regarding Pate’s
complaint, Lile stated that Albert Evans, the lead of the Raytheon department,

said “Herman has been extremely slow picking up his new job.” Garcia Decl.,
Ex. C. At a minimum, this record establishes a genuine issue of fact for trial.
As that is all that is required of Herman at this, the summary judgment stage,
the Court finds that Herman has presented sufficient evidence to establish a
prima facie case of age discrimination.

Turning to the second step of the McDonnell Douglas framework, the
Court considers whether AAR has come forward with evidence of a legitimate,
non-discriminatory reason for terminating Herman’s employment. To satisfy
its burden, AAR asserts that it terminated Herman because he “engaged in a

pattern of inappropriate behavior and language in the workplace that violated
AAR’s Code of Conduct and Anti-Harassment Policy.” Garcia Decl. at 3; Gross
Decl. at 2. This evidence satisfies AAR’s burden of producing a legitimate,
nondiscriminatory reason for terminating Herman. See McCoy v. GEICO Gen.

Ins. Co., 510 F. Supp. 2d 739, 752 (M.D. Fla. 2007) (noting that an employer
may terminate an employee for company policy violations); see also Garriga v.
Novo Nordisk Inc., 390 F. App'x 952, 955 (11th Cir. 2010) (internal investigation
finding violation of company policy was a legitimate, non-discriminatory

justification for employee’s firing). Therefore, the burden returns to Herman to
show that AAR’s proffered legitimate business reason is pretextual and the true
reason for his termination was age discrimination. See Sims, 704 F.3d at 1333.
A plaintiff may demonstrate that an employer's reason is pretextual by

identifying “such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffered legitimate reasons for its action
that a reasonable factfinder could find them unworthy of credence.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation omitted).
However,

[a] plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment for
that of the employer. Provided that the proffered reason is one that
might motivate a reasonable employer, an employee must meet that
reason head on and rebut it, and the employee cannot succeed by
simply quarreling with the wisdom of that reason.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (citations omitted).
Indeed, as the Supreme Court has explained, a reason cannot be a “pretext for
discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary's, 509 U.S. at 515 (emphasis in
original, quotations omitted). Significantly, at this stage, the plaintiff's burden
of demonstrating that the employer's proffered reason was not the true reason
for his termination “merges with the [plaintiff's] ultimate burden of persuading
the court that []he has been the victim of intentional discrimination.” Burdine,
450 U.S. at 256. Thus, “the question becomes whether the evidence, considered
in the light most favorable to the plaintiff, yields the reasonable inference that
the employer engaged in the alleged discrimination.” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1325 (11th Cir. 2011).
Here, Herman fails to point to any evidence casting doubt on Gross and
Garcia’s contention that AAR terminated Herman for violating company policy.
AAR’s Code of Conduct and Anti-Harassment Policy prohibit employees from
engaging in intimidating, hostile, or offensive behavior and provide that AAR
reserves the right to terminate those employees in violation of that policy. See

Garcia Decl. at 3, Ex. A. It is undisputed that Garcia received an email from
Herman’s supervisor Mike Lile, suggesting that Herman was engaging in
conduct that violated AAR policy. See id., Ex. C. Lile stated, among other
things, that Herman had a prior problem with Burrus, that Lile transferred

Herman but he continued to have interpersonal conflicts with Pate, that Evans,
Herman’s new supervisor at Raytheon, said Herman was a complainer who stirs
the pot, that Lile felt Herman’s behavior was “a character issue,” and that
terminating Herman “would be good for the masses.” Id. Pate reported that

Herman used profanity, called him names, threatened him, and made an
inappropriate statement about Pate’s recent surgery. Garcia Decl., Ex. D.
Garcia’s investigation of Lile’s allegations revealed that a number of Herman’s
coworkers felt that Herman engaged in harassing behavior. See generally id.,

Ex. D; Motion, Ex. 5; Garcia Depo at 23-24. Garcia also interviewed Herman.
Garcia Decl. at 2. Notably, Herman testified that during his interview in
discussing his interactions with Pate, he told Garcia:
Oh, I guess if he called me a queer or a fag or faggot or – I would
just say, yeah, right back at you, Pal. F*** you. I’d say f*** you
back. Or suck my dick. I would say suck my dick. It was just s**t
where I was fed up dealing with a young guy like this, start – trying
to start crap with me. But yeah, I would say stuff right back at him,
towards the end.
Herman Depo at 87. After completing her investigation, Garcia recommended
to a team of human resources personnel that AAR terminate Herman for

violating company policy. Garcia Decl. at 3-4. All members of the team agreed
with the decision. Id.
In an effort to show pretext, Herman argues that Lile’s email to human
resources was “based on lies and misrepresentations communicated to him by

Pate because it never happened . . . .” Response at 7. However, not only is the
record devoid of any evidence to support his contention but “‘[a]n employer who
fires an employee under a mistaken but honest impression that an employee
violated a work rule is not liable for discriminatory conduct.’” Hudson v. Blue

Cross Blue Shield of Ala., 431 F. App’x 868, 869 (11th Cir. 2011) (quoting
Damon, 196 F.3d at 1363; see also Smith v. Papp Clinic, P.A., 808 F.2d 1449,
1453 (11th Cir. 1987) (“[I]f the employer fired an employee because it honestly
believed that the employee had violated a company policy, even if it was

mistaken in such belief, the discharge is not [discriminatory] . . . .”) (citation
omitted). Herman fails to point to any evidence suggesting that Lile and Garcia
did not honestly believe Pate’s complaints.9 And while Herman seems to believe
that other employees like Mr. Lumsford would deny having seen harassing

9 Herman admits that he has “no knowledge regarding the witness interviews conducted
by Human Resources Generalist, Garcia, in connection with Pate’s complaint to Human
Resources” such that he could provide reasons Garcia did not actually believe them. Herman
Decl. at 9.
behavior from Herman and corroborate Herman’s side of the story, see Herman
Decl. at 5, that evidence fails to create a genuine issue of fact for trial because

it is undisputed that the employees interviewed by Garcia did complain about
Herman’s workplace conduct.
“It is a well-settled principle of employment law that in investigating
employee misconduct and reaching an employment decision, employers are

entitled to make credibility decisions, and [the Court’s] inquiry is limited to
whether the employer reasonably believed in good faith that the employee had
engaged in misconduct, not whether the employee actually did so.” Leach v.
State Farm Mut. Auto. Ins. Co., 431 F. App'x 771, 777 (11th Cir. 2011). Herman

has failed to present any evidence that AAR’s decision makers did not honestly
believe that Herman violated its Code of Conduct and Anti-Harassment Policy.
Herman may disagree with AAR’s findings, but he provides no basis for a jury
to conclude that AAR’s proffered reason for terminating him was not its true

reason. Notably, an “employer may [terminate] an employee for a good reason,
a bad reason, a reason based on erroneous facts, or for no reason at all, as long
as its action is not for a discriminatory reason.” Walton v. Cives Corp., 491 F.
App’x 29, 32 (11th Cir. 2012) (quoting Nix v. WLCY Radio/Rahall Commc'ns,

738 F.2d 1181, 1187 (11th Cir. 1984)). Indeed, the Eleventh Circuit has
unequivocally stated,
federal courts do not sit as a super-personnel department that
reexamines an entity's business decisions. No matter how medieval
a firm's practices, no matter how high-handed
its decisional process, no matter how mistaken the firm's managers,
the ADEA does not interfere. Rather our inquiry is limited to
whether the employer gave an honest explanation of its behavior.

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (citations
and quotations omitted). Here, Herman has failed to face AAR’s legitimate
business reason head on and rebut it.
Herman’s evidence regarding other older employees who were terminated
is similarly unavailing. In his declaration, Herman identifies several AAR
employees and asserts that he has “no knowledge regarding the circumstances
surrounding [their] termination other than it was because of [their] age.” See
Herman Decl. at 12-13. But Herman makes no attempt to identify any specific
facts or evidence that support this assertion. In response, AAR provides
evidence regarding the circumstances surrounding each of these employees’
departures from AAR that have nothing to do with their age. See Garcia Decl.
at 4-5. Herman points to no contrary evidence and his unfounded assumptions
are insufficient at this stage to meet his burden of creating a reasonable

inference that AAR’s true reason for terminating his employment was age
discrimination. Burdine, 450 U.S. at 256 (“The plaintiff retains the burden of
persuasion . . . the ultimate burden of persuading the court that []he has been
the victim of intentional discrimination.”). In light of the foregoing, no genuine
issue of fact is present and summary judgment is due to be granted in favor of
AAR as to Herman’s claims of age discrimination under the ADEA and the

FCRA.
b. Retaliation
To make a prima facie showing of retaliation under the ADEA and FCRA,
“a plaintiff must show that (1) [he] engaged in statutorily protected expression;

(2) [he] suffered an adverse employment action; and (3) the adverse action was
causally related to the protected expression.” Weeks v. Harden Mfg. Corp., 291
F.3d 1307, 1311 (11th Cir. 2002) (citations omitted); Carter v. Health Mgmt.
Assocs., 989 So. 2d 1258, 1263 (Fla. 2d DCA 2008). With respect to the first

element of his prima facie case, Herman must show that he “had a good faith,
reasonable belief that the employer was engaged in unlawful employment
practices.” Id. (quoting Little v. United Tech., Carrier Transicold Div., 103 F.3d
956, 960 (11th Cir. 1997)). The Eleventh Circuit has instructed:

It is critical to emphasize that a plaintiff's burden under this
standard has both a subjective and an objective component. A
plaintiff must not only show that he subjectively (that is, in good
faith) believed that his employer was engaged in unlawful
employment practices, but also that his belief was objectively
reasonable in light of the facts and record presented. It thus is not
enough for a plaintiff to allege that his belief in this regard was
honest and bona fide; the allegations and record must also indicate
that the belief, though perhaps mistaken, was objectively
reasonable.
Id. (quoting Little, 103 F.3d at 960). As to the third element – whether there is
a causal connection between the adverse action and the protected activity – the

Eleventh Circuit has stated,
[t]he causal link in the retaliatory discharge formula is not the sort
of logical connection that would justify a prescription that the
protected participation in fact prompted the adverse action. Such a
connection would rise to the level of direct evidence of
discrimination, shifting the burden of persuasion to the defendant.
Rather, we construe the ‘causal link’ element to require merely that
the plaintiff establish that the protected activity and the adverse
action were not wholly unrelated.

Hairston, 9 F.3d at 920 (quoting Simmons v. Camden County Board of Ed., 757
F.2d 1187, 1189 (11th Cir. 1985), cert. denied, 474 U.S. 981, 106 S.Ct. 385, 88
L.Ed.2d 338 (1985)). Of course, “[a]t a minimum, a plaintiff must generally
establish that the employer was actually aware of the protected expression at
the time it took the adverse employment action.” Hairston, 9 F.3d at 920
(quoting Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
Having established such knowledge a plaintiff can rely on a close temporal
proximity between the protected expression and adverse employment action to
demonstrate causation. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.
2004). However,
[t] he Supreme Court has stated that “mere temporal proximity
between ... knowledge of protected activity and an adverse ... action
... must be ‘very close.’” Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (citations
omitted). The Court cited with approval decisions in which a three
to four month disparity was found to be insufficient to show causal
connection. See id. (citing Richmond v. ONEOK, 120 F.3d 205, 209
(10th Cir. 1997) (3–month period insufficient) and Hughes v.
Derwinski, 967 F.2d 1168, 1174–75 (7th Cir.1992) (4–month period
insufficient)). If there is a substantial delay between the protected
expression and the adverse action in the absence of other evidence
tending to show causation, the complaint of retaliation fails as a
matter of law.

Id. Finally, as with a substantive age discrimination claim, if the employer
articulates legitimate reasons for its actions, the presumption created by the
prima facie case is rebutted and the plaintiff must show the employer’s proffered
reason was not the actual reason for the adverse employment action. See
Hairston, 9 F.3d at 919; see also Drago v. Jenne, 453 F.3d 1301, 1307 (11th Cir.
2006).
AAR seeks summary judgment as to Herman’s claims of retaliation under
both the ADEA and FCRA. See generally Motion. AAR argues that Herman
failed to make a prima facie showing of retaliation because he relies on
comments made by his non-decisionmaking coworkers, he did not complain
about the comments to human resources, and the individuals who decided to
fire him had no knowledge of his purported protected activity. Id. at 21.
Accordingly, AAR maintains that Herman cannot establish a causal connection
between his termination and his complaints of age discrimination. Id. Even if

Herman had made a prima facie showing of retaliation, AAR contends that it
has presented a legitimate, non-discriminatory reason for his firing. Id. at 22.
Finally, AAR argues that Herman presented no evidence that his termination
was actually a result of any complaints about “age discrimination in the
workplace” or that AAR treated Herman differently than any similarly situated

employee. Id. at 23. In his Response, Herman contends that he has proved
causation through a “cat’s paw” theory of retaliation because Garcia followed
Lile’s discriminatory recommendation without conducting an independent
investigation. Response at 19. He further repeats his contention that it is

illogical to believe that Garcia did not know his age, or at a minimum that he
was over forty years old, when she made her “retaliatory recommendation” to
management to terminate him. Id. at 19-20.
As an initial matter, the Court notes that Herman does not specifically

identify how or when he “opposed any practice made unlawful” under the ADEA
or the FCRA. The record shows that Herman made a comment to human
resources in connection with the George Mayo investigation four or five years
prior to his termination. See Herman Depo at 66-67. Other than complaining

that Reynolds’ comment in response to this incident was unprofessional,
Herman testified that he did not complain about any age-related comments or
conduct by Reynolds to human resources or anyone else at AAR. Id. at 68.
Nothing in the record suggests that in mentioning Reynolds’ comment four years

prior to his termination, Herman objectively or subjectively believed that AAR
was engaged in practices that violated the ADEA or the FCRA. Additionally,
the several years between the Mayo investigation and Herman’s termination is
certainly too large of a gap to demonstrate causation through temporal
proximity.

When asked if he ever complained of age discrimination to Lile, Herman
responded, “I told him what was said, yes” in reference to Burrus and Pate’s
name-calling. Id. at 69. However, Herman complained to Lile only one or two
times over the course of his six-year tenure at AAR, id., and Herman concedes

that once he went to Raytheon in July of 2018, he never made any further
complaints. Id. at 88. The record is completely devoid of any evidence to suggest
that in reporting these comments to Lile, Herman subjectively and objectively
believed that he was complaining about an unlawful employment practice. And

there is nothing in the record that suggests Herman’s termination was at all
related to his conversations with Lile six months earlier. Moreover, the
undisputed record shows that AAR’s Human Resources team made the decision
to fire Herman and they had no knowledge of any complaints of age

discrimination by Herman. See Garcia Decl. at 1; see also Gross Decl. at 2.
Regardless, even if Herman has established a prima facie case of
retaliation, as discussed above, AAR has satisfied its burden of producing a
legitimate non-discriminatory reason for Herman’s termination, and Herman

has failed to demonstrate that this reason is a pretext for prohibited retaliatory
conduct. See King v. Adtran, Inc., 626 F. App'x 789, 792 (11th Cir. 2015). The
undisputed record evidence establishes that AAR terminated Herman’s
employment because an internal investigation revealed that Herman had
violated company policy. Because no genuine issue of fact remains for trial,

summary judgment is also due to be granted in favor of AAR as to Herman’s
retaliation claims under the ADEA and the FCRA.
IV. Conclusion
In conclusion, viewing the record in the light most favorable to Herman,

Herman has failed to point to evidence that would permit a reasonable jury to
find that AAR’s stated reason for terminating his employment was merely
pretext for unlawful discrimination or retaliation. As such, summary judgment
is proper as to the entirety of Herman’s claims.

Accordingly, it is
ORDERED:
1. Defendant’s Dispositive Motion for Summary Judgment and Incorporated
Memorandum of Law (Doc. 44) is GRANTED.

2. The Clerk of the Court is directed to enter JUDGMENT in favor of
Defendant AAR Government Services, Inc.
3. The Clerk of the Court is further directed to terminate any remaining
pending motions and deadlines as moot and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 7th day of March,
2022.

MARCIA MORALES HOWARD
United States District Judge

1c28
Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109586. Public record. Not legal advice.